Over the past week, we have heard from several CBI surrogates (including journalists) desperately defending the crimes that the agency committed in the Aarushi-Hemraj double murder case. Its central line is: 'We did not want to take this to trial. Our hand was forced by a court order. We had said that we did not have evidence against Aarushi’s parents.'
This is a lie. Lies leave trails. Let’s follow the trail.
It begins with the most recent, most comprehensive, document available to us on this sordid matter: the meticulously crafted Allahabad High Court judgment that finally freed the Talwars on 12 October. Much has been said about the judgment, some of it is sensible, but there are two critical references on pages 25 and 153 that might have been missed.
They go to the heart of the question: was the CBI really forced to take this to trial? Or did they want the trial all along, horrific as they consequences might have been for the Talwars?
These findings by the Allahabad High Court, speak directly to the CBI’s intent:
On page 25, when all that the bench is doing is laying out the facts of the case, we find this:
“The investigating officer of the the case...(CBI’s) AGL Kaul surreptitiously got the statements of (Rajesh Talwar's friends)...Dr Raj Kumar Varshney and Dr Rohit Kochar recorded under section 164 CrPC, before (a magistrate) in Karkardooma, New Delhi and strangely not before the chief judicial magistrate, Ghaziabad, who alone had jurisdiction in the matter.
The same finding is repeated on page 153.
What this seemingly obscure reference gives us is the 'what' and 'where' of this story. The 'when' and 'why' become clear once we follow the trail that led to this finding.
The characters in play here are Kaul — the late investigative officer — and Varshney and Kochar, two friends of the Talwars who arrived at their flat soon after they heard the news of Aarushi’s murder on the morning of 16 May 2008.
As much as they would like to distance themselves from the murders, Varshney and Kochar were also Rajesh’s friends. They joined the investigation because they were eyewitnesses at a fresh crime scene.
Varshney told me: 'I wanted to help my friend'. It is only much later that they realised that what they were saying would be held against the Talwars. Also, and this was a pattern in this case, the witnesses knew what they were saying, but had no control over what was recorded. Statements were supposedly 'read over and corrected', but what went down on paper was what Kaul wanted. Instances of this abound. This brings us to the 'when'.
When were these statements under section 164 recorded?
Section 164 is a tool that investigators use very sparingly. Unlike other statements to investigators, these statements are recorded before a magistrate. They are also binding: the witness can not do an about turn in court once he/she has given such a statement. Section 164 is, therefore, used primarily in order to record outright confessions, or when witnesses turn 'approvers' (cooperating with the investigation to incriminate another accused, while also incriminating themselves — for instance, a witness to a murder who didn’t actually do the killing could become an approver).
So, when do Varshney and Kochar make these statements? And why do they assume such significance in sending the case to trial and, eventually, the Talwars to Dasna jail?
The trail tells us.
In November 2010, Ashwani Kumar was handing over the charge of the CBI to a new director, Amar Pratap Singh. The case had not been solved in Kumar’s tenure and Singh had no intention of carrying this baggage into his.
In the third week of November, he called a meeting of officials connected with the case, past and present. Arun Kumar, the first senior officer in-charge, was in that meeting, along with those who had replaced him, Neelabh Kishore and Kaul. Also present was the CBI’s counsel, RK Saini, who represented the agency during the trial.
Kaul and Saini made every attempt to suggest that there was enough evidence to charge the Talwars, but having heard them, everyone else in the room disagreed. Being new to the assignment, Amar may not have known all the details of the case. Arun, who did, said very little.
Arun would rather the case go down as unsolved than convict the wrong people. A decision was taken that day to file a 'closure report' rather than a charge sheet. This was, let us remember, the third week of November.
The closure report in this case is a lengthy document, and once the CBI high command had decided on this path, it needed to be written the right away. The investigation, as far as the agency was concerned, had ended with that meeting.
But it hadn’t.
Nearly a month after the decision to close the case without charging anyone, Kaul arranged for Varshney and Kochar to go to a magistrate in Karkardooma court — an act the judges in the Allahabad High Court found strange and illegal.
In mid-December, Kaul dispatched his majordomo (and firm believer in the Talwars’ guilt), inspector Arvind Jaitley, to round up the two doctors and get irrevocable statements recorded in a court without jurisdiction, but one that would record the statements anyway. (Think about that a little too.)
Varshney and Kochar said two key things that went against the Talwars in trial: that there appeared to be a wiped blood trail on the common stairs leading up to the roof. That Rajesh Talwar tried to avoid giving police the keys to the terrace. And that Nupur, despite her slain daughter lying near her, was still very concerned about her appearance — she kept looking in the mirror.
The statements operated at three different levels. First, the thesis of the crime scene was 'dressed up' was supported ('wiped blood stains').
Second, they suggested that these were people entirely devoid of remorse; they were more concerned about how they looked than the death of their daughter. This was conduct that only the sickest among criminals would display.
And third, and this is the subtlest of them all: the people saying these things about the Talwars were not those who bore any grudges, they were friends. What motivation could they possibly have to falsely accuse the Talwars — except that they were moral human beings to whom truth was more important than friendship.
The factual portion of these arguments (wiped stains, the key, etc) have been shred to pieces by the Allahabad High Court. And the fact is that the two doctors didn’t really know what they were expected to do when inspector Jaitley chaperoned them to Karkardooma. They had already told everything to Kaul months earlier (in statements they could change in court because theey weren’t recorded before a magistrate). They were told that the Karkardooma excercise was only about ironing out 'inconsistencies in language' in their previous statements.
So, this is where the trail has reached: the CBI decides to close the investigation without charging anyone and then, at least some of its actors decide to go ahead and try and make a better case for conviction using, in the Allahabad High Court’s words, “strange” methods.
If the agency had no intention of taking this to trial, what was it doing recording this kind of testimony? The simple answer is: Varshney and Kochar could become key witnesses for the CBI at the trial. This is exactly what happened.
That isn’t all, though.
The closure report was written in manner that excluded all suspects bar the Talwars. Dismissing every piece of evidence against others as totally unreliable, the December 2010 report says: ‘The findings of the investigation reveal a number of circumstances that indicate the involvement of the parents in the crime and the cover up.' It also goes on to talk about gaps in evidence, and motive — all relating to Rajesh and Nupur. It’s conclusion, however, is inescapable: no one but the Talwars could have committed the crimes.
The closure report was being written right after the decision taken at the meeting called by Amar in November. The statements of the two doctors were being recorded at a contemporaneous time, if not later.
The paper trail tells us exactly what happened, yet again. Varshney and Kochar’s statements were never meant to be part of the closure report. They went, instead, directly to Preeti Singh, the Ghaziabad magistrate who sent the case to trial.
In fact, the testimony of friends incriminating the Talwars is presented to the magistrate weeks before the closure report is sent to her. Primed as she is already, she says the CBI has enough evidence to convict the Talwars.
The record also tells us that project Karkardooma wasn’t the only one being undertaken to make a better case even after a decision has been taken not to press charges.
At around the time that inspector Jaitley was herding Rajesh’s friends to Karkardooma, Kaul was busy helping his friend, the forensic fantasist MS Dahiya, to conduct a 'crime scene reconstruction' on the Talwars’ roof. The purpose of which was to prove, 'scientifically' that a body could be wrapped in a sheet and carried up the stairs by two people. Once again, if the investigation is officially closed, why go through this exercise? Unless, of course, you are preparing for a trial.
These pieces of ‘evidence’ were used to send the case to trial and secure a conviction, but they failed miserably in Allahabad.
The CBI continued to go after the Talwars even after the decision not to charge them had officially been taken. The recording of statements in strange courts, the conducting of ‘scientific experiments’, these were acts of commission.
The acts of deliberate omission were perhaps more malignant. Kaul had told Dahiya that Hemraj’s blood had been found in Aarushi’s room. This was the backbone of the case in trial — something the CBI tried its best to prove, exposing its worst side in the process.
They knew the truth all along: this was a false claim. A claim around which Dahiya, a man sitting in Ahmedabad, built a false narrative.
The law on closure demands that all relevant documents be submitted to the trial court, but the CBI didn’t submit several, including key photographs and a sound simulation report that showed that the Talwars would have heard nothing in their bedroom with their air-conditioner on.
So, the defence that the CBI was forced into going to trial is not just cow dung, it’s Wagyu dung. The very best bull***t.
The CBI wanted this case to go to trial. That is why the closure report read less like an investigation without results and more like a chargesheet against the Talwars. That is also why statements that would come in handy in court were recorded at such a late stage, to say nothing of the bizzare 'scientific' experiments conducted at the same time.
This leads to the obvious question. Why did the CBI go after the Talwars in this elaborate and sinister way?
Counter-question: Isn’t that something the CBI must answer given what the Allahabad High Court has said? The nation, for once, is genuinely curious.
I have searched for some answers too. All that I have been able to come up with is that very often the motivations were petty. A promotion here (Kaul, who had previously been superceded, got one), an enhancement of reputation there (Dahiya), post-retirement employment (Saini), a grand and eloquent bequest to Indian jurisprudence (trial judge Shyam Lal). To my mind, these individual motives don’t constitute a conspiracy. They just add up to something greater than the sum of petty parts. They become a perfect storm. The Talwars, unfortunately, were in the middle of it.
Last thoughts on motives.
One of the surrogates appearing on television to defend the agency, he no doubt loves, is Amar. He had, if you recall, just taken over as director of CBI when the closure report was filed. He presided over the meeting that concluded that there was no evidence against the Talwars. He sticks by this and now says the agency’s hands were tied: the court had spoken, so a trial had to take place.
Fair enough. But some truths are self-evident, surely, the court also meant a ‘fair trial’.
The Allahabad High Court has made explicit the tampering, planting, tutoring and perjuring by CBI under Amar’s watch. Why is it that this accomplished officer defends the CBI, rather than reflect upon what a high court has said?
This question is best put to him. But as we do that, let us put another fact on the table. On a complaint filed by CBI, the enforcement directorate has registered a case of money laundering against the agency’s former head.
Singh’s spirited defence of his former employers has a parallel in the Profumo affair, the early 60s sex scandal that shook the British political elite.
For the sake of (everyone’s) convenience, I’ll just quote the (accurate, well referenced) Wikipedia entry here:
“While giving evidence at the trial of Stephen Ward, charged with living off the immoral earnings of (Christine) Keeler and (Mandy) Rice-Davies, the latter made a famous riposte. When James Burge, the defence counsel, pointed out that Lord Astor denied an affair or having even met her, she replied, 'Well (giggle) he would, wouldn’t he?'... By 1979, this phrase had entered the third edition of the Oxford Dictionary of Quotations, and is occasionally abbreviated as MRDA ('Mandy Rice-Davies applies')"
I’ve given this some thought (giggle) and in Amar’s case, MRDA does apply.
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Updated Date: Oct 23, 2017 10:10:42 IST